P2p and the Future of Private Copying
114 Pages Posted: 23 Sep 2004
Since the beginning of the P2P file-sharing controversy, commentators have discussed the radical expansion of copyright law, the industry's controversial enforcement tactics, the need for new legislative and business models, the changing social norms, and the evolving interplay of politics and market conditions. Although these discussions have delved into the many aspects of the controversy, none of them presents a big picture of the issues or explains how they fit within the larger file-sharing debate.
Using a holistic approach, this Article brings together existing scholarship while offering some thoughts on the future of private copying. The Article does not seek to advance a new theory or model, which could quickly become obsolete, given the rapid advance of digital and P2P technologies. Rather, it provides guidelines to help policymakers to craft an effective solution to the unauthorized copying problem.
This Article begins by examining the RIAA's enforcement tactics, developments in copyright law in 2003, and possible challenges the entertainment industry will face in ensuing years. The Article then evaluates critically proposals commentators have put forward to solve the unauthorized copying problem: (1) mass licensing, (2) compulsory licensing, (3) voluntary collective licensing, (4) voluntary contribution, (5) technological protection, (6) copyright law revision, (7) administrative dispute resolution proceeding, and (8) alternative compensation. Acknowledging the provisional nature of these proposals, this Article contends that policymakers need to adopt a range of solutions that meet the needs of consumers while taking into account the Internet's structural resistance to control, its immutable characteristics as a network, and the changing social norms in the digital copyright world.
This Article concludes by challenging policymakers and commentators to step outside their mental boundaries to rethink the P2P file-sharing debate. By presenting thought experiments that compare the ongoing P2P file-sharing wars to (1) a battle for self-preservation between humans and machines, (2) an imaginary World War III, and (3) the conquest of Generation Y, this Article demonstrates that policymakers should not focus on legal solutions alone. Instead, they should pay more attention to market forces, technological architectures, and social norms, which also play very important roles in crafting an effective solution to the unauthorized copying problem. The Article concludes by offering some guidelines that may point the way to this solution.
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By Ian Brown